The Gazette 1971

mitted the offence and would, if placed on trial, be unfit to plead, the justice may by order certify that the person is suitable for transfer to the Central Mental Hospital. The inspector of mental hospitals then exam- ines this patient, who is kept meanwhile in the district mental hospital concerned and, after consideration of the report of the inspector, the Minister for Health, may, if he so thinks fit, by order, direct and authorise the transfer. However, two events of the past six months have focused much attention on these legal provisions and on the institution of the Central Mental Hospital. The first of these is the case of the self-styled Maoist, Martin Dolphin, who while serving a one-week sentence in Mountjoy for contempt of court, found his imprison- ment suddenly and arbitrarily extended under Section 13 of the Lunatic Asylums (Ireland) Act, 1875. The second event was the escape of several young men from Dundrum in recent months. This involves, firstly, the whole question of the law as a guardian of individual freedom, when incomplete and unsatisfactory evidence from a limited selection of doctors can cause an indi- vidual, having no legal adviser, to be deemed as "unfit to plead" and then subjected to what has been called a medico-legal conspiracy and resulting in what would seem to be an arbitrarily extended imprisonment. Secondly, there is the disquiet as to the powers vested in psychiatrists who by unknown criteria can curtail indi- vidual freedom for instance by equating political rebelli- ousness with mental ill-health. Finally there is the very important query as to the unsuitability of Dundrum Hospital as a place used for the care and treatment of custody patients, who could suitably be provided for in district mental hospitals. Such unsuitability is based on facts such as the inadequacy of remedial psychiatric care and the undesirability of lack of segregation of the old and young patient. The unease about Dundrum as a secretive institution is surely justified by the remarks of the present governor of Dundrum. when she remarked on a recent television programme that a number of people in the hospital should not be there at all. If Dundrum Hospital is to be retained as a central place of detention for custody patients who have committed heinous offences or who portray very violent or homi- cidal tendencies then steps will have to be taken for the improvement of the care and attention available there. It is to be hoped that the proposed April takeover of Dundrum by the Dublin Health Authority is a step in this direction. The provisions about the transfer to the Central Mental Hospital should be consolidated with elucidation on the procedures by which persons are selectively assigned to it ensuring that where possible custody patients will be catered for in district mental hospitals. Finally an acceptable criterion must be pre- sented governing "fitness to plead". In conclusion, unfortunately the problems of the mentally ill are still not free of the ignorance and shame which have attached to them historically. It is the duty of those who should know better that all such stigma be completely eradicated. Until it is fully realised that mentally ill people are not outcasts of society to whom the administration's hand should be occasionally extended, rather they should be regarded often- times as a product of our society to which such adminis- tration owes a duty. This duty can to a large extent be fulfilled by enlightened attitudes and action, but such enlightened attitudes must extend all along the line, through the lawmakers and law enforcers. The politi- cians and the judiciary must be prepared to regard to the fullest degree the expertise of psychiatrists, psycho- logists and social workers—obviously this attitude must 11

of criminal law. On the other hand it might be urged that the crime exists notwithstanding the perpetrator's insanity but that such a crime differs from other crimes in that the criminal behaviour stems, not from a per- manent moral defect in the character of the offender but from a moral defect resulting from a purely transient pathologic condition, which may be improved or cured. Society, however, must prevent transgressions of the criminal code even where the transgressors are, by virtue of mental incapacity, morally irresponsible. The solution must be sought in a preventive detention which will protect the wellbeing of society and at the same time prove therapeutic from the detainee's point of view. As was stated in U.S. v Freeman (1966), "our function as judges requires us to interpret the law in the best interests of society as a whole. We therefore suggest that if there are inadequate facilities and personnel in this area, Congress, the state legislatures and federal and state executive departments should promptly consider bridging the gap". We must finally consider the idea of a central place for the separate confinement of such custody patients and the procedures whereby custody patients are admitted either to a district mental hospital or to the Central Mental Hospital. This hospital founded at Dundrum in 1850, with the express object of the segre- gating persons who had committed offences, or were charged with offences, from other patients. The present legal provisions may be summarised as follows : persons in custody who are found to be mentally ill may be admitted either to a district mental hospital or to the Central Mental Hospital on the order of the Minister for Justice. This order obliges the resident medical superintendent to keep the patient in question "in con- finement until the further order of the Minister for Justice". Such persons may also be transferred by the Minister for Justice from the Central Mental Hospital to a district mental hospital and vice-versa. As to the discharge procedures, under Section 3 of the Criminal Justice Act,. 1960, the Minister for Justice may release temporarily any custody patient who is not deemed dangerous to himself or others. Otherwise the discharge of custody patients is regulated as follows : persons "on remand", or awaiting the "government's pleasure" hav- ing been found insane by a jury either on arraignment, or after trial must stay in the district mental hospital or the Central Mental Hospital until they are certified as having recovered. They may then be returned to custody or discharged by the Minister for Justice. In the case of persons found guilty of murder but insane the matter is first referred to the Government by the Minister for Justice before conditional or absolute dis- charge is authorised. Persons awaiting trial stay in the mental hospital only until the court to which thev are brought to trial is held. The person is then usually arraigned, found unfit to plead and dealt with as afore- mentioned. Persons undergoing sentence remain in the mental hospital, if they continue to be of unsound mind until their sentences expire, when, as a result of a Minister's order, they are dealt with as ordinary patients. If they recover before their sentences expire they are returned to prison. Finally there is the judicial power of transfer to the Central Mental Hospital under Section 207 of the Mental Treatment Act, 1945, validated by the Supreme Court in the State (O'Neill) v Central Mental Hospital on 28th July 1969. This states that a patient in a district mental hospital may be charged with an indictable offence, before a justice of the District Court sitting in such a district mental hospital. If, on the basis of the evidence given, the justice is of opinion that there is prima facie evidence that the person com-